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Case Laws
Showing 121 to 140 of 931 Records
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2008 (9) TMI 916 - DELHI HIGH COURT
Non-compliance of Section 61 of the Copyright Act, 1957 - News Broadcasters - Held that:- The broadcast reproduction right as contended by the appellant are to be treated as separate, distinct and independent rights. Therefore, unable to agree with the interpretation of the impact of Section 61 of the Act, which the learned Single Judge has preferred to adopt.
We are also unable to subscribe to the view taken by the learned Single Judge that non-compliance of Section 61 of the Act leads to the legal position in the present case where the suit of the appellant warranted dismissal of the suit on account of not making the original owner Cricket Academy (C.A.) a party as per the mandate of Section 61 of the Act.
In our view, Section 61 of the Act having been specifically left out by the Legislature by virtue of Section 39-A of the Act specifying the applicable provisions of Chapter VIII of the Act to broadcast reproduction rights, clearly rules out the applicability of Section 61 of the Act and the learned Single Judge's view therefore does not commend itself for approval by us. D. We also hold that even if we assume that Section 61 of the Act were to apply, the dismissal of the suit was not justified in view of the independent copyright owned by the appellant in the eventual telecast comprising of vital inputs by the appellant. Appeal is allowed.
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2008 (9) TMI 915 - GAUHATI HIGH COURT
Retention of the seized documents beyond the period prescribed - Held that:- When the Legislature has used the word "approval" in section 44(3) and the words "prior approval" finds mention in other provisions of the Sales Tax Act, i.e., section 28, it will not be correct on the part of the court to understand the approval contemplated by section 44(3) to be "prior approval". The use of the expression "prior approval" of the Commissioner for retention of the seized books of accounts documents, etc., in the proviso to section 74(3)(b) of the Assam Value Added Tax Act, 2003, is a further pointer to the legislative intent. Thus it cannot be held that the approval granted by the Commissioner by his order dated February 11, 2003, though after expiry of 120 days, is invalid in law to make the retention of the seized documents by the respondent illegal.
In so far as challenge to the notice dated November 8, 2002 is concerned, there is hardly any basis for the court to hold that the said notice as well as the proceedings contemplated are in any way contrary to the provisions of the Sales Tax Act. If the seized documents have been retained by the authority legally and lawfully, as has been already held by the court, the position emanating from such seized documents need not have been furnished to the petitioner along with the notice dated November 8, 2002. Any such action demanded by the petitioner would be to virtually nullify the seizure and retention of the documents belonging to the petitioner. The petitioner would be entitled to the said verification report as well as the seized documents only once he produced the books of accounts, as required to do by the notice dated November 8, 2002. W.P. dismissed.
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2008 (9) TMI 914 - MADRAS HIGH COURT
Order of assessment challenged - Held that:- The impugned order by way of revision of assessment should not have been passed without giving the assessee an opportunity of personal hearing. But since the same has been denied, the impugned order is hereby quashed.
Allow the appeals and are constrained to hold that the learned judge of the writ court was not correct in his conclusion in dismissing the writ petitions, inter alia, on the ground of non-exhaustion of alternative remedy in the facts and circumstances of the case discussed above. The judgment of the learned judge is set aside. Therefore, direct that the appellant/petitioner must appear before the second respondent in these appeals, who passed the impugned order, within a period of seven days from the date of getting a certified copy of this judgment and thereupon, the second respondent will fix the personal date of hearing in which the appellant must appear and the hearing should be concluded within two weeks thereafter.
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2008 (9) TMI 913 - KARNATAKA HIGH COURT
Tax on payments for admission to entertainments - constitutional validity of the provisions of sections 3(1)(b), 3A, 3C and section 4 of the Act questioned as discriminatory in the matter of levy of tax between a class of films produced in Kannada, Kodava, Konkani, Tulu or Banjara languages on the one hand and films produced in the rest of the languages on the other hand
Held that:- The provisions of section 4, which constitute a proviso in the nature of levy of a lower rate of tax in the case of Kannada, Kodava, Konkani, Tulu or Banjara films, i.e., the following portion of section 4 of the Act is declared as unconstitutional -
"Provided that in the case of a cinematograph show of Kannada, Kodava, Konkani or Tulu film, in addition to tax leviable under sections 3 and 3A, the tax payable under this sub-section shall be at the following rates, namely - Exceeds fifteen rupees but does not exceed twenty rupees - Thirty-eight rupees OR Exceeds twenty rupees - Forty-eight rupees And Provided also that in respect of cinema theatres paying tax in the manner specified in section 4A, the tax payable under this sub-section in respect of cinematograph show of a Kannada, Kodava, Konkani or
Tulu film shall be at the following rates, namely —Total payment for admission of a person to the highest class of seat or accommodation Does not exceed eight rupees - Rate of tax per show will be Thirteen rupees if Exceeds eight rupees but does not exceed fifteen rupees - Twenty-five rupees if Exceeds fifteen rupees - Thirty-eight rupees
The petitioners cannot even complain of act of discrimination in the present situation, particularly in respect of section 3C of the Act, providing for an exemption or concession, as the exemption provision in no way affects the petitioners who are all exhibitors of movies and who are free to choose to exhibit movies of the language of their choice. Exhibiting a movie in a language which enjoys a tax concession or tax exemption can, if at all, be to the advantage and benefit of the exhibitors and it can in no way said to be disadvantageous or even to bring about an act of discrimination against the petitioners in any manner. It is for this reason, no fault with the provisions of section 3C providing for special provisions in the nature of concession or exemption in the matter of exhibition of cinematograph shows of films in Kannada, Kodava, Konkani, Tulu or Banjara languages. The challenge to the provisions of section 3C on the ground of unconstitutionality therefore fails and the argument is rejected.
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2008 (9) TMI 912 - KERALA HIGH COURT
Reassessment orders - Held that:- On the day when the revisional authority had issued the notice, the original order of assessment dated March 3, 1994 was not in existence, in the sense, that, the said order was the subject-matter of reassessment proceedings by the assessing authority. An order, which was not in existence, cannot be revised by the revisional authority by invoking his suo motu revisional jurisdiction and on that sole ground, in our opinion, the orders passed by the revisional authority pursuant to his notice dated September 30, 1997, and the subsequent orders passed by the Tribunal require to be set aside.
Answering the questions of law framed by the assessee in favour of the assessee.
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2008 (9) TMI 911 - UTTARAKHAND HIGH COURT
Whether, on the facts and in the circumstances of the case, the Tribunal erred in law in knocking off the interest imposed by the assessing officer, ignoring the provision contained in section 9 of the Central Sales Tax Act, 1956?
Held that:- In para 14 of the J.K. Synthetics Ltd. v. Commercial Taxes Officer [1994 (5) TMI 233 - SUPREME COURT] it has been held by the apex court that expression "tax payable" means the tax which becomes due under the particular provision of law. It is further mentioned in the aforesaid case that the meaning of the expression must be understood in the context of the relevant provision of law. Since the admitted tax, i.e., at the concessional rate, was paid within time, and the one imposed by the A.O. on the ground that form "C", relating to certain transactions, were not shown, was also paid, after the assessment order was passed, within time, as such there is no liability to pay interest demanded by A.O.
The question of law stands answered accordingly in the negative. Both the revisions are liable to be dismissed.
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2008 (9) TMI 910 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... t would not be out of place to mention here that in many judicial fora, it has been decided that in a taxing statute, an item has to be interpreted in its popular sense meaning that sense which the people conversant with the subject-matter with which the statute is dealing with, would attribute to it. The commodity should be judged and analysed on the basis of how these expressions are used in the trade or industry or in the market or, in other words, how these are dealt with by the people who deal in them. We, therefore, dispose of these applications directing the Commissioner to determine afresh as to whether item No. (xxviii) and (xxix) of entry No. 54B of Part I of Schedule C of the VAT Act, 2003, after taking into consideration the various decisions and principle discussed hereinbefore, would cover diesel engines and generator sets and spare parts and accessories thereof sold by the petitioners in these cases. No order as to costs. PRADIPTA RAY J. (Chairman). - I agree.
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2008 (9) TMI 909 - WEST BENGAL TAXATION TRIBUNAL
Scope of WB VAT - diesel engine, diesel engine generator set and spares as well as accessories - sales of diesel engine and diesel engine generator set
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2008 (9) TMI 908 - KERALA HIGH COURT
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... ... ..... Name of dealer Turnover which is exempted Conditions and restrictions (1) (2) (3) (4) 7A Any dealer Turnover of sale of river sand within the State The sand is for consumption within the State The notification clearly states what is exempted under the notification. It says turnover of sale of river sand within the State. In our opinion, it is a conditional exemption, in the sense that, if a dealer effects sale of river sand only in the State of Kerala, he would be exempted from payment of tax under the KGST Act. Since it is a conditional exemption, in our opinion, in view of section 8(2A) of the CST Act, the assessee is not entitled for exemption under the provisions of the CST Act. This is the line of reasoning of the Tribunal also. We are in agreement with the reasoning of the Tribunal. Therefore, without going to the other details of the case, while confirming the orders passed by the Tribunal, we reject the revision petition filed by the assessee. Ordered accordingly.
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2008 (9) TMI 907 - RAJASTHAN HIGH COURT
Escaped turnover - Reassessment - whether inter-State sales made by the assessee were sales not supported by "C" form required under section 8(1) of the CST Act, therefore, exemption under the notification was not available to the assessee? - Held that:- This court is of the opinion that learned Tax Board has wrongly set aside the order of the Deputy Commissioner (Appeals) dated February 16, 2001 as well as order of learned assessing authority passed section 12 of the Act dated March 14, 1997. The contention of learned counsel for the respondent-assessee that since the assessee was availing of benefit under the Incentive Scheme of 1987 and, therefore, no such additional tax could be imposed upon him is also of no avail. The said Incentive Scheme operated in a different field for granting exemption from taxes on the basis of eligible investment made by the assessee during the operative period of the Scheme. Such exemption could not override the exemption wrongly granted to the assessee on account of non-compliance with the mandatory provisions of section 8(1) of the CST Act by not furnishing "C" form as prescribed in law.
Consequently, this revision petition is allowed and the impugned order of Tax Board dated June 18, 2003 is set aside. The Revenue would be entitled to recover the due tax in pursuance of reassessment order dated March 14, 1997
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2008 (9) TMI 906 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... o nil as the period in question is prior to the date of amendment, i.e., prior to August 1, 2001. The application is disposed of but under the facts and circumstances of the case without any order as to costs. PRADIPTA RAY (Chairman). - I agree. SAIKH ABDUL MOTALEB (Judicial Member). - I agree. LATER After the judgment is delivered, Mr. Banerjee, learned State Representative, prays for stay of operation of this judgment. Mr. Chakraborty, learned Advocate for the petitioner opposes the prayer for stay of operation of the judgment and submits that if stay is granted the respondents should be restrained from realising the amount during the said period of stay. As the question of Constitutional vires of the retrospective part of the notification is involved, we grant an interim stay of operation of the judgment till November 10, 2008. During the said period the respondents are also restrained from taking any step for realising the demand which has been set aside by our judgment.
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2008 (9) TMI 905 - MADRAS HIGH COURT
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... ... ..... 422 (Mad), that sewing thread does not lose its character as cotton yarn and continues to retain its identity and character as cotton yarn notwithstanding the fact that they are sold for being used as sewing thread. The court observed thus 39 In our view, sewing thread is not different from cotton yarn and they are one and the same commodity... 39 6.. The fact that the assessee adds colour to the yarn by itself does not make it any less cotton yarn. The Tribunal was wholly in error in holding that sewing thread is not cotton yarn and that the assessee can be subjected to tax by treating such sewing thread as not being declared goods. The impugned order of the Tribunal is, therefore, set aside and the writ petition is allowed. Hence, the issue in the present case is already covered by holding that the cotton thread manufactured by the assessee is still a declared goods and not different from the cotton yarn and are one and the same commodity. Hence, the tax case is dismissed.
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2008 (9) TMI 904 - RAJASTHAN HIGH COURT
Whether the exemption Notification No. 1490 dated September 17, 2001 S.O. No. 183 issued under section 15 of the Rajasthan Sales Tax Act, 1994 exempting sale or purchase of all kinds of man-made fibers and man-made yarn to which the rate of tax in respect thereof exceeds two per cent also covered the turnover tax imposed on the petitioner-assessee under section 13A of the RST Act, 1994 or the said exemption is limited to the individual sale or purchase of the specified commodities in the said notification?
Held that:- This court finds no force in the contentions raised by the learned counsel for the assessee that the turnover tax imposed upon the assessee should also be deemed to have been exempted under the notification dated September 17, 2001 and nothing beyond two per cent on sale of all kinds of man made fibers and yarn could be imposed in the face of the said notification. The said notification, in the considered opinion of this court, does not cover and exempt turnover tax leviable under section 13A of the Act and the said turnover tax imposed at 0.25 per cent under notification dated March 30, 2000 is neither hit nor eclipsed nor cut by the subsequent notification dated September 17, 2001. Against assessee.
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2008 (9) TMI 903 - UTTARAKHAND HIGH COURT
Whether no entry tax is payable on the purchase of diaphragm? - Held that:- We do agree with the learned counsel for the revisionist to the extent that customs duty is a kind of indirect tax like the Central excise and it can be charged by the seller from the purchaser. But, in the case of customs duty, there can be two modes of making the payment. Supposing an item imported from abroad is purchased from a dealer in India, the Indian dealer has a right to add customs duty paid by him to the price of the goods, and same can be charged from the subsequent purchaser. Inclusion of such duty by the seller would make the purchase price higher than the purchase price paid by the dealer directly from the seller outside India and such purchaser for importing will have to make payment of customs duty himself. In a later case as per the spirit of definition of "purchase price" given in clause (gg) the customs duty or other charges paid by the purchaser separately (not charged by the seller) does not to form part of the purchase price. That being so, we do not find any error of law committed by the Tribunal in holding that the A.O. and the first appellate authority have erred in law by adding the customs duty paid by the dealer (which the seller has not charged) in calculating the value of the goods imported by the dealer.
Thus the revision filed by the Revenue is liable to be dismissed.
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2008 (9) TMI 902 - MADHYA PRADESH HIGH COURT
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... ... ..... against the petitioner-company is hereby quashed. The respondent-Department is directed not to order any recovery against the petitioner-company before a valid assessment order, in accordance with law, is passed against the petitioner-company. However, in the assessment proceedings, it would be open to the petitioner-company to raise all the pleas, as are available to it, in accordance with law. Before parting with this order, it may also be relevant to mention that since an exemption application filed by the petitioner-company is said to be pending before the High Level Screening Committee, it would be desirable that an early decision is taken on the said application by the aforesaid High Level Screening Committee, in accordance with law, so that unnecessary harassment of the petitioner-company is avoided. The petitioner shall be at liberty to present a copy of this order before the High Level Screening Committee for taking requisite action in the matter. C.C. as per Rules.
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2008 (9) TMI 901 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... twear Company 2006 145 STC 532 2005 25 PHT 427, it was held that having regard to language of rule 29 of the Rules, judgment of the honourable Supreme Court in Mod. Serajuddin v. State of Orissa 1975 36 STC 136 on interpretation of section 5 of the Central Sales Tax Act, 1956 was not applicable and the State law was more liberal which provided deduction from the gross turnover of goods proved to be exported out of territory of India whether by one transaction or by series of transactions, i.e., either directly by the dealer or through intermediary or through consecutive sales. In the present case, admittedly, goods have been exported out of India, though the dealer has not directly entered into contract of export but has exported the goods through the intermediary. In view of the above position, following the earlier judgments of this court, the questions referred have to be answered against the Revenue and in favour of the assessee. The reference is disposed of accordingly.
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2008 (9) TMI 900 - KARNATAKA HIGH COURT
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... ... ..... plication, retaining the original himself. In the entire petition, petitioner has not stated that he made an application in the prescribed form requesting for issue of transit pass and the respondents have refused to issue the transit pass. His case is the driver requested for issue of pass. Mere oral request for pass will not entitle the driver to a transit pass. It is only when an application is made in the prescribed form and after complying with the legal requirements, the authorities can issue transit pass. When admittedly, the petitioner made no written application in the prescribed form for issue of transit pass, the authorities are under no obligation to issue such pass. That being the case, when the petitioner has not complied with the legal requirements, there is no corresponding obligation on the part of the authorities to comply with the said statutory provision. Therefore, the petitioner is not entitled to the relief sought for. Hence, the petition is dismissed.
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2008 (9) TMI 899 - KERALA HIGH COURT
Whether, on the facts and circumstances of the case, the Tribunal is justified in its finding that firewood is an unclassified item and will not fall under entry 8 of the Fifth Schedule to the Act?
Held that:- The user test is only logical but is again inconclusive. The particular use to which an article can be applied in the hands of a special consumer is not determinative of the nature of the goods. In the facts and circumstances of this case, the other tests which are commonly applied for interpreting the taxing entry need not be resorted to, since the facts in the instant case, clearly demonstrate that the commodity purchased and sold is only "firewood", and therefore, in our view, the Appellate Tribunal was justified in classifying the commodity as a residuary item falling under entry 156 of the First Schedule to the KGST Act. Therefore, we are of the view that the Tribunal has not committed any error on facts which would call for interference.
Accordingly, keeping in view the facts situation which is not disputed by either side, that, the assessee had sold the wood to the purchaser, namely, a Government company only as "firewood" and not as timber, while sustaining the orders passed by the Tribunal, we reject these revision petitions.
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2008 (9) TMI 898 - KERALA HIGH COURT
Best judgment assessment - penalty imposed - Held that:- The assessing authority has not independently applied his mind, but has merely adopted whatever that was done by the intelligence officer of the Department for the purpose of imposing penalty under section 45A of the Act. As already observed that the assessing officer is a quasi-judicial authority and while exercising his quasi-judicial function, he has to apply his mind independently and while doing so, can also take into consideration the findings of the intelligence officer of the Department and at any rate, that cannot be the sole basis. Thus cannot sustain the order passed by the assessing authority. Set aside the order passed and remand the matter to the assessing authority with a direction to pass a fresh order in accordance with law. Revision allowed.
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2008 (9) TMI 897 - MADRAS HIGH COURT
Order of TNGST assessment - Held that:- The assessment order for the assessment year 2004-05 is passed arbitrarily and without jurisdiction and is liable to be dismissed without unnecessarily subjecting the appellant to the onerous and lengthy appellate proceedings, as held by the Constitution Bench of the Supreme Court in the case of Calcutta Discount Co. Ltd. [1960 (11) TMI 8 - SUPREME Court] .
The assessment order, which is the subject-matter of Writ Petition No. 2392 of 2008(1), is hereby set aside and the matter is remitted back to the assessing officer to reframe the assessment by giving an opportunity to the appellant in accordance with law. For this purpose, the appellant is hereby directed to appear before the assessing officer on October 23, 2008 with relevant materials. The assessing officer shall proceed with, to frame the assessment, in accordance with law without being influenced by the D3 proposals of the Investigating Wing Officers.
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